Commentary - Art. 14. Part II : General protection of prisoners of war

ARTICLE 14. -- RESPECT FOR THE PERSON OF PRISONERS

[p.143] PARAGRAPH 1. -- PERSON AND HONOUR

This provision appeared in Article 3, paragraph 1 of the 1929 Convention (1) in almost identical terms. In the French text of the 1949 Convention, however, the word "personne" was substituted for "personnalité". This change seems to emphasize that the rule is a general one and that the term "personne" embraces both the physical and the moral aspects of the individual.

1. ' Respect for the physical person of the prisoner '

Respect for physical integrity generally means that it is prohibited to kill, wound or even endanger prisoners of war. As we have seen above, Article 13 defines this obligation in a positive manner by specifying certain acts which constitute grave breaches. It should be emphasized that this protection must be enforced not only in regard to the agents of the Detaining Power, but also, should the occasion arise, in regard to fellow prisoners. Any infraction should be liable to punishment. We shall also see that Article 96, paragraph 3 , expressly forbids the Detaining power to delegate its disciplinary powers to a prisoner of war or to allow them to be exercised by a prisoner of war. The protection applies in particular to the following:

What of the right of sentries to use their weapons if prisoners attempt to escape (2)? We shall examine this question in connection with Article 42 , which limits the use of weapons against prisoners of war, in particular against those who escape or attempt to escape, and with Article 121 , which calls for an official enquiry in any such case.

(b) the person of the prisoner must be protected in the general living conditions to which he is subjected, which must not be harmful [p.144] to his health. A number of articles of the Convention are devoted to the implementation of this principle in specific cases (3).

(c) Lastly, prisoners must be protected from the effects of military operations, on land and especially against air bombardment (Article 23 ).

2. ' Respect for the moral person of the prisoner '

Respect for the person goes far beyond physical protection and must be understood as covering all the essential attributes of the human person. These include on the one hand a whole gamut of convictions, whether religious, political, intellectual, social, etc., and, on the other hand, the desire to strive to carry out these convictions. These qualities and aspirations, which are the rightful attributes of each individual, are referred to in diverse ways in the various legislative systems. Captivity restricts the blossoming of personality more than any other mode of life, but its harmful effects must not exceed the hardship imposed by captivity itself. Although the exercise of social or patrimonial rights may seem to be incompatible in practice with the status of prisoner of war, there are certain essential rights which may not be affected by that status, such as the civil capacity which is safeguarded by the present Article and the exercise of religious duties, which is ensured by Article 34 . The Convention contains no expressreference to freedom of opinion; and yet this right, which is one of the fundamental elements of personality, may be threatened today because of the ideological nature of conflicts, either by those who guard the prisoners, if the Detaining power endeavours to weaken the morale of detainees or to win them over to its cause, or by their own fellow prisoners. This problem of propaganda was the subject of a lively discussion at the Conference of Government Experts (4). The discussion did not lead to any positive result, as it seemed too difficult to define the type of propaganda which should be prohibited. Propaganda is the dissemination of certain opinions with the object of persuading the listener to support them. It may be aimed at a variety of objectives: religious, social, economic, cultural, political etc., and may, in fact, harm the interests of the Power of [p.145] Origin of the prisoners concerned. Its effects are all the greater if prisoners have been weakened physically and morally by long captivity. None of the provisions of the Convention takes account, in this regard, of the interests of the power of Origin. One may assume, however, that the personal interest of prisoners is protected by the present provision which, by declaring the principle of respect for the person of prisoners, prohibits any propaganda likely adversely to affect it in the long run. In this connection one may refer to Article 38 , which provides that "while respecting the individual preferences of any prisoner...", the Detaining Power must encourage the practice of intellectual, educational and recreational pursuits etc.; the Detaining Power is, therefore not merely authorized but is urged to make intellectual and educational facilities available to prisoners, on condition that the individual preferences of each of them are respected. A fortiori, therefore, prisoners must not be subjected to any propaganda contrary to the spirit of the Convention. On the other hand, any propaganda which would reaffirm the rights of the individual in accordance with the Geneva Conventions is permissible.

3. ' The prisoner's honour '

The sentiment of honour is one of the factors of personality. The prisoner of war must be viewed by his guard as an unhappy enemy and must be treated accordingly: administrative officials and guards alike must be considerate for the sensibilities of soldiers who have tasted defeat, and any persecution based on their misfortune is prohibited. They must be protected against libel, slander, insult and any violation of secrets of a personal nature, and they must be so protected not only ' vis-à-vis ' their guards, but also (although this is sometimes more difficult to achieve) ' vis-à-vis ' their fellow prisoners. The problem of clothing prisoners of war is sometimes very delicate; it is understandable that they would feel repugnance at having to wear the uniform of the enemy army and they must be asked to do so only in case of absolute necessity and after the appropriate modifications have been made to such uniforms. The honour of prisoners also requires that they should be permitted to wear their badges of rank and nationality (Article 40 ), that officers should be treated with the regard due to their rank and age (Article 44 ), that all labour of a humiliating kind should be avoided (Article 52 ), that any punishment should not be of a dishonourable kind and, lastly, [p.146] that in case of death there must be honourable burial (Article 120, para. 4 ). It must be stressed that prisoners are entitled to such respect "in all circumstances" and this phrase is linked to those which declare the inalienability of the rights of prisoners of war.

PARAGRAPH 2. -- THE SPECIAL POSITION OF WOMEN

Article 3, paragraph 1 , of the 1929 Convention already stated that "women shall be treated with all consideration due to their sex". Considering that much prejudice still remained which sometimes placed women on an inferior footing, the Conference of Government Experts was of the opinion that provision should be made for women to receive treatment at least equal to that accorded to male prisoners of war (5).

1. ' Treatment as favourable as that granted to men '

In order clearly to interpret Article 14, paragraph 2 , one should reverse the chronological and grammatical order of the text; the treatment to be accorded to women prisoners is not based on the rather vague idea of "regard" but on treatment equivalent to that accorded to male prisoners. There is no doubt as to the principle: whatever the customary practices of the Detaining Power and the status accorded to its nationals, women prisoners must receive treatment at least as favourable as that granted to men. This principle is, however, weakened to some extent by the existence of exceptions of two kinds: the first category of exceptions stems from the Convention itself which, in certain articles, makes provision for special treatment for women. The second category arises from the present paragraph and from the idea of "regard" which it contains. The Convention makes a specific reservation concerning the situation of women in a number of cases (6), and these express reservations call for some comment. Some of them make provision for special treatment for persons of the weaker sex (separate dormitories, separate places of detention); [p.147] others merely refer to the fact that women should in general receive more favourable treatment, without specifying what it should consist of. Does this privilege cover all the provisions of the Convention or, on the contrary, does it only refer to those provisions which make express reference to it? In our view, this reference tends to strengthen the scope of the principle rather than to limit it. The Convention also contains a series of provisions -- relating, for instance, to insults and public curiosity (Article 13, para. 2 ), questioning (Article 17 ), food (Article 26 ), clothing (Article 27 ), intellectual, educational and recreational pursuits, sports and games (Article 38 ), conditions for transfer (Article 46 ff. ), prisoners' representatives (Article 79 ) -- to which the principle is applicable, although it has not been explicitly mentioned. This is merely due to thefact that there might seem to be a less pressing need to comply with the requirement.

2. ' The regard due to women '

It is difficult to give any general definition of the "regard" due to women. Certain points should, however, be borne in mind, whatever the status accorded to women either in the country of detention or in the country of origin; these points are the following:

(a) weakness;

(b) honour and modesty;

(c) pregnancy and child-birth.

These three considerations must be taken into account in the application of provisions of the Convention.

A. ' Weakness '. -- This will have a bearing on working conditions (Art. 49 ff. ) and possibly on food.

B. ' Honour and modesty '. -- The main intention is to defend women prisoners against rape, forced prostitution and any form of indecent assault. provision is therefore made for men and women to be separated in Articles 25 (dormitories), 29 (sanitary installations), 97 and 108 (execution of punishment). The honour and modesty of women prisoner are also protected by Articles 13, paragraph 2 (protection against insults and public curiosity), 17 (questioning), and if need be, where the clothing available is seriously inadequate, by Article 27 .

C. ' Pregnancy and child-birth '. -- If there are mothers with infants among the prisoners, they should be granted early repatriation. [p.148] Particular "regard" is required in the case of women prisoners who are pregnant when captured or become pregnant in captivity despite the precautions taken, not only for the birth, but also for the care of the child (7). The best solution would be that which was suggested at the Conference of Government Experts: women who have given birth should be repatriated with their child, while pregnant women should either enjoy special treatment or, if their state of health permits, should also be repatriated.

PARAGRAPH 3. -- CIVIL CAPACITY OF PRISONERS

1. ' Definition and general principles '

The civil capacity of a person involves both the existence and the exercise of civil rights. The exercise of these rights is generally subject to the person concerned having attained majority and not being under an interdict, on the one hand, and being capable of discernment, on the other. The principle of the retention of civil capacity by prisoners of war, which was already recognized in Article 3 of the 1929 Convention, emphasizes that war captivity bears no resemblance to detention under common law and that, unlike the latter, it cannot result in any ' capitis deminutio '. War captivity impairs neither the honour nor the dignity of its victims. This recognition is of great importance. In ancient times and in the Middle Ages, prisoners of war were generally put into slavery and it was not until the eighteenth century that there was any change in the status of prisoners of war and, even so, their juridical personality was not yet recognized. The 1863 Code of rules for armies in the field of the United States of America expressly referred to the property rights of prisoners, in Article 72 (8). Article 4 of the Regulations concerning the Laws and Customs of War on Land, annexed to the Fourth Convention of The Hague of 1907, contains a similar provision; the Oxford Manual is even more explicit, since it states that captivity is "a temporary detention [p.149] only, entirely without penal character" (Article 61 ). But none of these texts affirmed the full and complete capacity of the prisoner.

2. ' Determination of a prisoner's civil capacity '

The 1949 Diplomatic Conference considered it necessary to clarify the 1929 text establishing the civil capacity of prisoners of war. It was recalled that this capacity is always determined by law, whether the legislation of the country of origin of the internee or that of his country of domicile. But the prisoner will never be considered as "resident" in the country of detention solely by virtue of the fact that he is in captivity. The legislation of his country of origin will, therefore, be applicable in most cases as that is also the country of domicile of the majority of prisoners. There are other possibilities, however, and for that reason the Stockholm draft, which only referred to the law of the country of origin, was amended by the Geneva Conference (9), so as to refer instead to the "civil capacity which they enjoyed at the time of their capture". This wording is rather ambiguous and might be interpreted as meaning that the time of capture determines the scope of the provision. Thus, a prisoner who was a minor at the timeof capture could never attain full civil capacity, even if during captivity he reached majority. This opinion would be contrary to the spirit of the principle stated in the Article, and it must be rejected (10). It is reasonable to assume that the purpose of the expression is merely to determine the legislation applicable. The civil capacity of the prisoner of war will therefore be determined by the legislation which governed his capacity at the time of capture.

3. ' The ' de facto ' capacity of the prisoner of war '

Since the prisoner retains his full civil capacity, he must be able to exercise his rights both in his country of origin or domicile and in the country of detention.

A. ' The exercise of the prisoner's capacity in his country of origin or domicile '. -- The prisoner's interests in his country of origin or domicile may be safeguarded through appropriate institutions, acting in place of the absent person, or by the prisoner himself, acting through a [p.150] proxy or by correspondence. The first solution is not applicable to matters of direct personal concern: marriage, divorce, judicial separation, recognition of children and exercise of paternal authority. All these judicial actions may be carried out by proxy on condition that both the power of Origin and the Detaining Power adopt appropriate procedures and grant the necessary facilities. The consequent obligation for the Detaining Power (subject to the requirements of captivity) is confirmed by Article 77 , which requires that the Detaining power shall authorize and facilitate the transmission of necessary correspondence, the preparation and transmission of powers of attorney, transmission of instruments, papers or documents, and shall take necessary measures for the authentication of prisoners' signatures and allow them to consult a lawyer. During the Second World War, legal services were established in some prisoner-of-war camps, under the direction of the prisoners' representatives (11). One further comment with regard to wills. Article 120 of the Convention provides that wills shall be drawn up so as to satisfy the conditions of validity required by the legislation of the country of origin of prisoners of war. The legislation of most countries makes provision for a simplified procedure in the case of military personnel. If, however, the legislation of the country of origin required an authenticated document, the Detaining Power would have to take the necessary measures to enable such an instrument to be prepared. In that case, the Protecting Powers could act as consular authorities. Article 14 also implies, in our opinion, that the Power of Origin should establish a procedure which would enable prisoners to execute legal instruments during their absence with all the necessary guarantees (12). But in the case of prisoners, this must merely safeguard their status and would not enable them to maintain or undertake any commercial activity, for instance. In this connection, we should refer to the institution of marriage without both parties being present. During the last war this procedure was permitted, notably by Germany, Belgium, France and Italy, which passed special legislation to permit prisoners of war to marry by proxy in their country of origin. On the other hand, most [p.151] countries placed limitations on the right of prisoners of war to enter into marriage with nationals of the Detaining power or with foreigners resident in the territory of that power; this question, however, is related to the exercise of civil capacity on the territory of the Detaining Power.

B. ' The exercise of civil capacity by a prisoner of war on the territory of the Detaining Power '. -- Although, in principle, a prisoner of war does not come into contact with nationals of the Detaining Power, experience has shown that in practice such contacts do occur, particularly if a prisoner of war is working and leaves the camp to mingle with the civilian population. It would seem very difficult, however, to recognize any extensive right of a prisoner of war to exercise civil capacity in the country of detention. As far as relations with his fellow prisoners or with women prisoners of war are concerned, the prisoner naturally enjoys his full capacity in the field of family law, with the reservation, however, that in principle family life is incompatible with the system of captivity. The civil capacity of prisoners of war is not restricted as far as legal obligations are concerned, but the requirements for validity of legal instruments must be able to be met. A similar distinction will be made regarding relations between a prisoner of war and the civilian population and there is no doubt that, as far as family law is concerned, his personal responsibility is involved (13). As regards legal obligations, the question is more difficult. Whatever the degree of independence granted to the prisoner, opportunities for him to participate in the commercial and economic life of the country of detention will probably be very limited because he is an enemy and a prisoner. It seems doubtful, moreover, that any legal action resulting from a prisoner's participation in the life of the civilian population could be considered under private law; such action should more appropriately be considered as coming within the scope of public law (14). Reference must also be made to responsibility for illicit acts. We do not refer here to penal matters, which the Convention explicitly makes subject to the laws of the Detaining Power (Article 82 ), but to offences of which a prisoner of war may be the victim. In the event [p.152] that prisoners of war suffer any loss or damage to their personal property, however slight, they must be able to claim any rights due to them, through the offices of the military authority in whose hands they are, unless this authority expressly authorizes them to defend their own interests themselves. Responsibility for injuries or offences may also be involved in the case of occupational accidents. Article 27, paragraph 4 , of the 1929 Convention required belligerents "to admit prisoners of war who are victims of accidents at work to the benefit of provisions applicable to workmen of the same category under the legislation of the Detaining Power". The International Committee of the Red Cross pointed out that the effectiveness of this provision was restricted if the consequences of the accident continued after the repatriation of the prisoner of war; it was therefore deleted and was replaced by Article 54, paragraph 2 , and Article 68 of the 1949 Convention, which provide for compensation by the Power of Origin and require the Detaining Power to provide the prisoner of war concerned with a medical certificate enabling him, if need be, to submit a claim.

(7) [(1) p.148] This problem is distinct from that of the education of adolescent prisoners, which was a particularly delicate question during the Second World War, when certain Powers had enlisted a large number of minors in their armies. Both problems may, however, be considered under Article 38;

(9) [(1) p.149] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' vol. II-A, pp. 248-249;

(10) [(2) p.149] In this connection see ' Final Record of the Diplomatic Conference of Geneva of 1949, ' vol. II-A, p. 400;

(11) [(1) p.150] In this connection, see a very interesting work by Ferdinand CHARON, ' De la condition du prisonnier de guerre français en Allemagne au regard du droit privé, ' thesis presented to the Faculty of Law of paris, 1946;

(12) [(2) p.150] In the majority of cases, this procedure could be added to the existing legislation (see CHARON, op. cit.8). See, in Swiss law, the regulations for mandate and management or any other contract, as well as the general regulations concerning representation (Art. 32 ff. of the Swiss ' Code des Obligations ');

(13) [(1) p.151] Cf. CHARON, op. cit., pp. 244-245;

(14) [(2) p.151] This is why the responsibility of the Power on which a prisoner of war depends is involved when there are no means of redress, either in regard to private persons or to the Detaining Power, e.g., in the case of occupational accidents during captivity. See Article 54, para. 2, below;